Upholding People's Rights under the Constitution

Friday, April 13, 2012

Application for Internal Review of FOI Decision of Refusing to Release Any Substantial Information

Dear FOI Co-ordinator,

Your Ref: FOI/2012/006

I am writing to apply for an internal review of the decision made by Mr Russell Egan, Assistant Secretary of Government Division of the Department of the Prime Minister and Cabinet on 16 February 2012. Mr Egan refused to grant access to the conditionally exempt documents within the meaning of 47C of the Freedom of Information Act 1982 (the FOI Act).

A. Documents 1, 2, and 3

The undisclosed parts in documents 1, 2 and 3 are actually the same parts because document 3 is a part of document 2 and document 2 is a part of document 1. According to the contexts of the document, the deleted parts are:

d. Ms MacDowell’s final affirmation to accept Mr Jose’s decision even though she might not completely agree with Mr Jose’s opinion and decision.

(a) ‘purely factual material’

In Mr Jose’s email of 15 July 2009 to Ms MacDowell, he wrote: ‘I agree to the transfer of this request to the department, as proposed’; however such proposal in Ms MacDowell’s email is not disclosed. Her proposal is a ‘purely factual material’ under section 47C(2)(b) of the FOI Act, so the proposal should be released accordingly. Furthermore, as Mr Jose did not address the matter about the application fee, Ms MacDowell naturally raised the matter again to Mr Jose in her email of 17 July 2009. This is a ‘purely factual matter’; therefore, it should be released as well under section 47C(2)(b) of the FOI Act.

(b) ‘final decision’

Under section 47C (3)(c) of the FOI Act, the ‘final decision given in the exercise of a power or of an adjudicative function’ must be disclosed. In the released parts, there is no final decision. According to the context Mr Jose gave his decision regarding the remission of application fee in his email of 17 July 2009 to Ms MacDowell; as a result, the final decision in both Mr Jose’s email of 17 July 2009 to Ms MacDowell and her affirmative email on the same day must be disclosed under section 47(3)(c) of the FOI Act and section 6.68 of the Guidelines issued by the Information Commissioner under section 93A (the FOI Guideline).

(c) ‘opinion’ and ‘advise’

Under section 47C of the FOI Act, accessing to opinion and advice ‘must generally be given’. Mr Egan did not release any deliberative matter in the nature of opinion and advice; that is contrary to section 47C of the FOI Act. Apparently, he believes that disclosing any opinion and advice has the potential to compromise relevant officers’ confidence to provide frank and candid opinion and advice. According to his logic, the FOI Act has the potential to compromise relevant officers’ confidence to provide frank and candid opinion and advice. On the face of it, he believed that relevant officers do not have confidence in themselves in their ability to provide proper, reasonable and legitimate opinions and advices. Section 11B(4) of the FOI Act particularly deals with such worry and defines such worry as irrelevant facts.

Mr Egan’s reasons are formulated for any documents, circumstances and time. He did not provide any reason why the circumstance is a ‘particular circumstance’ required by sections 6.14, 6.20 and 6.21 of the FOI Guidelines. Under section 26 of the FOI Act Mr Egan should give some substantial and particular factors to clarify why the circumstance is an unusual circumstance.

(d) A matter of public importance

Mr Egan did not consider the factor favouring access to the document in the public interest given in section 11B(3)(b) of the FOI Act. This FOI inquiry is relevant to all workers’ legal rights, and thousands people have petitioned to the Parliament about the matter, to which this FOI inquiry is relevant; therefore the opinion and advice given by officers or advisers about the matter will inform the debate on the matter of a public importance.

B. Documents 4

There is not any final decision in document 4; implicitly, the deleted part of the document must contain the decision. As outlined at A(b) above, the final decision should be disclosed under section 47C (3)(c) of the FOI Act. Nevertheless, as outlined at A(c) and A(d) above, the reason or advice for the final decision should be released as well due to the public importance of the matter and for promoting the objects of the FOI Act.

Summary

Mr Egan’s reasons did not contain any ‘substantial adverse effect’ to ‘the particular document, particular circumstance and particular time’, which are required by sections 6.14, 6.20 and 6.21 of the FOI guidelines. His reasons are formulated and can be applied to any documents, circumstances and time. He did not release any information about the contents of the final decision, the final decision-makers, and the reasons and advice considered in the final decision-making processes being contrary to above-mentioned sections of the FOI Act.